Consumer advocate and nursing home expert Brian Lee wrote a guest column for Florida’s Herald Tribune on the new tort reform measures to protect the nursing home industry.  Below are some excerpts.

In his recent guest column, “Nursing home articles disputed,” the nursing home industry’s lead lobbyist and spokesperson, Emmett Reed, claimed that he would “set the record straight” on Senate Bill 1384 — an awful bill sponsored by Sen. Bill Galvano.

Unfortunately, Reed never actually got to the record.

Instead of presenting clear and convincing evidence on how this legislation would benefit residents, he has offered obfuscations shrouded in a great deal of industry spin.

First, Reed claims that his bill will “continue” to “ensure” that nursing homes are held to the “highest standards.”

That is simply not true.

Not a single line, phrase or word — not even a comma — in the bill addresses the standard of care. Does Reed’s definition of “highest standard” recognize the 17,021 deficiencies cited at Florida nursing homes, 50 percent of which were directly related to resident care, during the past three years, more than $4.6 million in federal fines against nursing homes in the state, and the fact that one in five nursing homes are so bad they are on the state’s notorious watch list? If this is Florida’s definition of “highest standard,” it is a sorry one.

Nurse hours at low level. Reed also states that nursing home residents are “receiving more time with nurses on a daily basis.” Also not true.

The latest federal staffing data compiled by independent sources (Online Survey, Certification and Reporting) show that Florida’s total nurse hours have dropped to their lowest levels in the last five years. Absolutely nothing in SB 1384 would guarantee higher staffing levels for residents.

Reed has the audacity to assert that injured residents and their personal injury lawyers deprive nursing homes of resources “devoted” to the care of residents. What? This makes no sense.  He is actually blaming victimized elderly and disabled adults who’ve suffered horrible and provable mistreatment at the hands of negligent caregivers.

Don’t they, like all Americans, have the right to seek redress through the courts and to pursue punitive damages in horrific cases? This bill only addresses serious cases involving care that is so bad, it rises to the level of punitive conduct. We are not talking slip-and-fall cases. We are talking about cases of physical abuse, sexual assault, chronic and purposeful understaffing, fraudulent behavior by owners and a host of other very bad acts.

As the profits of nursing homes soar to record levels, as the publicly traded stocks of nursing homes outpace the Dow Jones Industrial Average by a 2-to-1 ratio, and as per-bed prices of homes in Florida soar to new levels, staffing levels are dropping. Yet SB 1384 says, according to the testimony we heard from experts, thta the corporate owners can never be punished in court?

He says this despite the facts that the nursing home industry’s own actuarial report (published annually by Aon, a risk-management firm and insurer) clearly and repeatedly states that the frequency of lawsuits in Florida have “steeply declined” and that “loss costs per bed have dramatically decreased.” Things are so good for nursing homes here in the Sunshine State that Florida is no longer listed among the problem states — and, to repeat, this is a report from Reed’s own people.

This contrived “lawsuit problem” devised through Senate Bill 1384 is smoke and mirrors meant to financially benefit owners who cause serious harm to residents in lieu of improving care for elderly and disabled residents.

That’s the real story.

And as for the personal attacks against me, they don’t warrant a response because, as the old saying goes, words will never harm me.

But when it comes to harm, the real harm is what his association is pushing before this Legislature with Senate Bill 1384.

Brian Lee is executive director of Families for Better Care, based in Tallahassee. Web: www.familiesforbettercare.com

 

The Miami Herald also had an article on the new tort reform measures in Florida.  “Despite the emotional testimony from the families of nursing home patients who suffered abuses, the bill cleared its last stop on Monday — with a 12-3 vote by the Senate Rules Committee — and is headed to the Senate floor.”
Ken Thurston and his sister, Sandra Banning, who have been speaking out against this legislation, told committee members their mother, Virginia, was raped in 2002 at a Jacksonville nursing home by another resident with a history of sexual assaults. The siblings never collected a $750,000 verdict from the owner of the Glenwood Nursing Center (then called Southwood), which was later shut down.  Thurston asked the panel: “Who benefits from this legislation? To put it another way, whose rights are being subordinated and whose are being protected by this bill?”

AARP Florida advocacy manager Jack McRay calls the bill “unnecessary and unconscionable.”
“It’s already exceedingly difficult to get punitive damages in a case,” he said.. Making it even harder to sue for punitive damages “eliminates the deterrent factor for future behavior.”
Since 2001, the state has required that half the funds from punitive damage cases against nursing homes be placed in a trust fund — and that has yet to happen, according to the Agency for Health Care Administration.

The Tampa Tribune reported on the new Florida tort reform measures that protect corporate owners and operators of nursing homes for neglect and abuse.  It requires the victims to show "conclusive evidence" of abuse before proceeding with a claim for punitive damages, raising the legal requirement that traditionally exists. Under current law, parties seeking punitive damages must make a “reasonable showing” of the evidence supporting their claim before being allowed to proceed. The bill accelerates the process for parties seeking punitive damages by forcing them to provide “clear and convincing” evidence before being allowed to pursue a claim for punitive damages.

The bill would make it more difficult for families to get their full measure of justice when abuse occurs.  Families also would face a higher standard before proceeding with a punitive claim.  Under the bill being proposed, only nursing home owners found to have “actively and knowingly participated in intentional misconduct” would be liable for punitive damages. That would reward an owner’s ignorance of their own operations. 

"Unlike compensatory damages, which calculate the loss and expense suffered by victims, punitive damages are meant to punish reprehensible conduct and to deter its reoccurrence."

"When the elderly are abused, and families seek compensatory damages from those responsible, the judgments can be limited by the victim’s incapacitation. Punitive damages are the clear and imminent threat that gets the attention of the nursing home operators and owners."

 

 

In Jacksonville, a woman tries desperately to get justice for her mother’s sexual assault at a nursing home. Sandra Banning went before the Senate Judiciary Committee this month to try and improve the way nursing home cases were conducted in the state of Florida.  The Senate is attempting to pass more tort reform that protects nursing homes from accountability and responsibility.   It raises the threshold for those suing nursing homes to seek damages for excessive misconduct, or “punitive damages.”  The bill (SB 1384) would require that before a person seeks punitive damages, a judge must first grant permission and require a detailed hearing to vet evidence used.  In other words, the victim has to disclose his strategy and trial tactics in a mini-trial to convince the judge, and then have another trial in front of the jury.  What a waste of judicial time and money.

Banning told the tragic story of how her mother was raped in a nursing home when a man used his wheelchair to block the door.  Sandra Banning was awarded a $750,000 judgment but it was never paid by the nursing home corporation. Florida has a state trust fund where 50% of punitive damages are required to go into this fund to assist with reform. However, since that bill was enacted in 2001, there have been zero successful punitive damages claims brought against nursing homes. The bill has two more stops before the Senate can completely come to a decision on it.  See article at the Florida Times-Union.

The Palm Beach Post reported on Florida’s attempts to protect the corporate decision-makers from accountability for their decisions that affect the care provided at the facility.  In the case of “vicarious liability,” HB 869 says, punitive damages may not be imposed unless “an officer, director, or manager of the actual employer, corporation, or legal entity condoned, ratified, or consented to the specific conduct.”  The bill makes it even more difficult to hold the corporate decision-makers (who make millions from taxpayers) responsible for the neglect and abuse at their nursing homes.

Advocates for residents warn it’s a bad move in a state with one in five homes on a watch list for safety concerns.  15 more nursing homes recently joined the state watch list, joining some 123 others already on it.

“All this legislation does is immunize corporate decision-makers from any accountability,” said Brian Lee, the state’s former long-term care ombudsman and now the executive director of an advocacy group, Families for Better Care.

Meanwhile, executives who controlled nursing homes in Palm Beach and two other counties face felony charges in a $2.75 million Medicaid fraud case. A Pahokee nursing home paid more than $26,000 for an assistant CEO’s BMW and a Gainesville affiliate paid more than $50,000 for her Cadillac convertible, according to documents supporting the arrests. The Gainesville home is on the watch list.

This additional protection is not needed.   Florida had the most dramatic changes in liability costs in the country, with claims per 1,000 beds dropping by half from 2000 to 2007 and severity falling from $450,000 to $100,000 per claim.

 

The Florida Times Union reported that Florida’s Republican Tea Party Governor Rick Scott will cut Medicaid.  Nursing home industry and patient advocates agree that the cuts will harm nursing home residents.  Scott’s plan includes Medicaid rate cuts of $429 million as part of a budget-cutting exercise. Though state economists’ early projections show a $71 million budget surplus going into 2013-14, Scott required all state agencies to submit an initial budget plan that would cut spending by 5 percent.

“More than 60 percent of that cut — $274 million — would be shouldered by nursing homes under the proposal presented this week by the Agency for Health Care Administration.”  This will clearly affect staffing and the care of the residents.

 

“Two-thirds of my costs are people,” said Marty Goetz, CEO of River Garden Hebrew Home in Jacksonville. “If that level of cut happens, I will have to reduce staff, salaries or hours.”

 

 

“During the spring legislative session, lawmakers cut $38 million from nursing homes, and $49 million for hospital outpatient services. The latter would see another $119.4 million reduction as part of the agency’s proposal.”

 

The San Francisco Chronicle reported that governor Rick Scott of Florida has decided to dump more than 3,300 children with disabilities into adult nursing homes because the state is slashing nursing and other services that would otherwise keep them at home with their families.  A lawsuit was filed to stop the transfers.  The lawsuit mirrors a letter sent this week by federal officials to Florida Attorney General Pam Bondi alleging the state is violating federal law by allowing more than 200 children with disabilities and even babies to be kept in nursing homes, often for years.

Children languish in facilities, sharing common areas with elderly patients and having few interactions with others, rarely leaving the nursing homes or going outside.  Investigators noted the children are not exposed to social, educational and recreational activities that are critical to child development.  Educational opportunities are limited to as little as 45 minutes a day, according to a detailed letter by U.S. Department of Justice officials.  Investigators also said Florida is violating the federal Americans with Disabilities Act and is infringing on the children’s civil rights by segregating and isolating them. The average length of stay is three years.

These kids who are institutionalized in geriatric nursing homes are receiving less services than kids in prison,” said Paolo Annino, a law professor at Florida State University.

The state turned down nearly $40 million in federal dollars for a program that transitions people from nursing homes back into the community. The state has also been paying community-based providers less, reducing payments by 15 percent last year because of legislative budget cuts. Yet the state implemented policies that expanded nursing home care, by offering facilities a $500 enhanced daily rate for caring for children, which is more than double than what the state pays for adults.

 

The Miami Herald had an article on Florida’s Supreme Court recent decisions on mandatory arbitration in nursing home admissions paperwork.  The Court held that nursing home arbitration clauses that limit remedies allowed by state law are invalid. The opinions said lower courts erred by compelling arbitration in negligence cases against nursing homes.

In one case, Gayle Shotts sued OP Winter Haven Inc., as personal representative of the estate of Edward Henry Clark, her uncle, following his death in 2003.   See decision here.

In the other case, Angela Gessa accused Manor Care of Florida Inc., of negligence, violation of resident’s rights and breach of legal duties during a stay at its Carrollwood facility in Hillsborough County.  See decision here.

The majority also ruled that a 2010 U.S. Supreme Court decision that an arbitrator, not a court, had to decide whether an arbitration agreement was unconscionable did not apply to nursing home cases.

 

The Palm Beach Post and the Highlands Today had articles about Florida Republicans refusing to accept $35.7 million in a federal grant to help move nursing-home residents to community-based services.  Why would they refuse federal money unless they were trying to protect nursing home profits?

Senate Minority Leader Nan Rich, D-Weston said serving people outside of costly nursing homes would save money for the state.  The AARP also blasted the move in a statement issued:

"This would not only have been less expensive for taxpayers, it would have helped people with mental or physical disabilities get out or stay out of nursing homes and remain where they want to be — in their homes," said Jack McRay, the organization’s advocacy manager. "It also would have kept tax dollars paid by Florida taxpayers in Florida — rather than having them spent in other states."

Florida is one of 13 states that were awarded a federal demonstration grant for the program. The money comes from the new federal health care law.

 

The Palm Beach Post Opinion published a commentary from Brian Lee, executive director of Floridians for Better Care, who was removed by Gov. Scott in February after seven years as Florida long-term care ombudsman.  Lee references the inherent conflicts of interest and attacks against Florida’s Long-Term Care Ombudsman Program drastically weakening its ability to protect nursing home residents and their rights.

"At the apparent behest of an industry group, the Florida Assisted Living Association all but handpicked the new ombudsman, to have someone with a friendlier disposition toward their interests. The volunteer ombudsmen, led by Lynn Dos Santos, state council chairwoman, protested this as a violation of federal and state law. The Scott administration apparently tired of Ms. Dos Santos’ rants and had the Department of Elder Affairs secretary "de-designate" her for "alleged" Sunshine Law violations. The secretary failed to realize that he cannot "fire" her, but the administration and industry obtained their desired outcome. Ms. Dos Santos’ removal sent fear throughout the ombudsmen. Volunteers scattered, convinced that speaking up might result in their own dismissal. The issue at hand: the Legislature’s reduction in nursing home staffing hours."

Meanwhile, the Orlando Sentinel had an article on the Florida Republican Legislature passing additional restrictions on the right of injured patients to sue the medical industry.  The legislation would arbitrarily exclude qualified medical professionals from explaining issues to the jury.

Although lawsuits, insurance premiums and the amount of damages paid have all gone down since jury awards were limited in medical-malpractice cases in 2003, GOP lawmakers say Florida needs to protect insurance companies in order to get more doctors to stay in the state.  Despite the fact that data shows that doctors are not leaving Florida.

A DOH survey of 23,297 active physicians last year found “low compensation” — not lawsuits — as the main reason doctors weren’t accepting new Medicaid patients. Of the 8,529 doctors not accepting new patients, 42 percent said low pay was the reason.

See this article from the Orlando Sentinel for more information about the problems in Florida’s nursing homes.